Supreme Court Says Its Permission Not Needed For High Courts To Transfer Presiding Officers Of Special MP/MLA Courts

The Supreme Court on Tuesday clarified that its permission is not required for the High Courts to transfer Presiding officers of Special Courts dealing with cases pertaining to MPs/MLAs. The same was done by a bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice Manoj Misra to ensure that the administrative work of the High Courts does not suffer.

In August 2021, the Supreme Court had directed that the Presiding officers of the Special Courts involving prosecution of MPs or MLAs, shall not be transferred except with permission from the Apex Court. Following this, several High Courts filed interlocutory applications seeking permission to transfer judicial officers due to administrative exigencies or on other grounds. In response, in October 2022, the Supreme Court directed that it would not be necessary for the High Courts to seek prior permission of the Apex Court for transfer of judicial officers in cases where the transfers were made in "the normal course consequent upon the end of their tenure in a particular posting". However, it added, that if a transfer is caused for any other reason, the prior permission of the Supreme Court would be necessary.

Senior Advocate Vijay Hansaria, the amicus curiae in the matter, informed the Supreme Court today that there were many requests for the transfer of judicial officers occasioned by the condition of prior permission of the Apex Court before transferring. 

Thus, in order to ensure that the administrative work of the High Courts does not suffer as a result of the delay occasioned in dealing with the interlocutory applications, the Supreme Court modified its orders. The court stated that the permission of the Supreme Court shall not be required for transfer of Presiding officers of Special Courts dealing with cases pertaining to MPs/MLAs by the High Courts subject to due observance of the following conditions:

(i) The High Court concerned may transfer the Presiding officers of Special Courts - MPs/MLAs after obtaining the approval of the Chief Justice of the High Court on the administrative side;

(ii) While granting permission, the Chief Justice shall ensure that some other judicial officer is posted in the vacancy which would be caused by the transfer so that the Special Court in charge of cases of MPs/MLAs is not kept vacant; and

(iii) The transfer shall be permitted subject to the condition that there is no case pending for final judgment after the conclusion of the arguments in the trial.

Case Title: Ashwini Kumar Upadhyay v. Union Of India And Anr W.P.(C) No. 699/2016 PIL-W

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